Model Toxics Control Act

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Ecology administers RCW and provides this definition: "The Model Toxics Control Act (MTCA) is one of several environmental laws in Washington. Known as the state’s cleanup law, MTCA governs the cleanup and prevention of contaminated sites that can threaten people’s health and the environment. MTCA’s main purpose is to raise sufficient funds to clean up all hazardous waste sites and to prevent the creation of future hazards due to improper disposal of toxic wastes into the state’s lands and waters.

• https://ecology.wa.gov/Spills-Cleanup/Contamination-cleanup/Rules-directing-our-cleanup-work/Model-Toxics-Control-Act
• RCW 70.105D includes the substance of the act.
• WAC 173-340 describes cleanup processes.

Notes

• MTCA prescribes a series of tasks where a Potentialy Liable Party works through a supervised incremental design process. Ecology has a how cleanup works website.
  • Remedial Investigation/Feasibility Study (RI/FS) - where the "extent and nature" of contamination is identified and alternatives are compared using an incremental cost analysis.
  • Cleanup Action Plan (CAP) - where a remedy is selected as the basis for design.
• A set of criteria located in WAC 173-340-360 defines how a cleanup action shall be identified.
• MTCA includes a "disproportionate cost analysis" which in some situations can prevent the state from successfully requiring a liable party to complete a more thorough cleanup action, if a less thorough clean up action can be show to remove risk.
• MTCA supports the state in pursuing Natural Resource Damage Assessment and there are very few precedents or rules defining limits on state authority. In particular, unlike CERCLA there is no stipulated statute of limitations.
• NRDA may not be a priority among some MTCA-authorized teams. There are NRDA efforts in state-led cases at Port Gardner in the Snohomish Delta, in the Port Gamble Ecosystem and Port Angeles Harbor however they involve Federal Trustees.
• The Puget Sound Initiative in 2009 identified a set of Puget Sound Priority cleanup sites - https://ecology.wa.gov/Spills-Cleanup/Contamination-cleanup/Cleanup-sites/Puget-Sound

Questions

• Can a CAP require regulatory pre-consultation during design to ensure remedies are consistent with state and federal law as required in WAC 173-340-360?
• What are best methods for evaluating costs and benefits during the incremental cost analysis that include all costs and benefits?

Strategies Parties Use To Minimize Their Liability

Potentially-liable parties use consultants experienced in cleanup to develop cleanup programs that serve their clients interests. There is a pattern and sequence to cleanup planning that appears predictable, and takes advantage of opportunities to minimize liability:

• Argue that they were not the source of contamination.
• Argue that there is baseline contamination they are not responsible for.
• Inflating the costs of the remedy to make them cost-ineffective.
• Defining remedies that achieve an average concentration of contaminants over an area.
• Delaying the process to allow for natural attenuation of contamination.
• Minimize sampling to affect either cleanup extent, or influence cost-benefit analysis.
• Arguing for the efficacy of least-cost remedies.

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